[2020] KECPT 11 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO 419 OF 2013

ELIMU SACCO SOCIETY LIMITED ..................................CLAIMANT

VERSUS

THE ESTATE OF THE LATE

JOHNSON EDWIN KOBUNGU(DECEASED)............1ST RESPONDENT

ELIZABETH EDWIN KOBUNGU...............................2ND RESPONDENT

RULING

The Claimant has moved the Tribunal vide the Application dated 7. 10. 2019 seeking for the following orders:

1. That the Honourable Tribunal be pleased to enter judgment on admission against the Respondent for Kshs.448,910. 85/= with interest at courts rates from 2. 7.2018 until payment in full;

2. That in the alternative, the Tribunal be pleased to strike out and/or dismiss the Respondent’s Memorandum of Defence dated 16. 10. 2018 and enter judgment for the Claimant against the Respondent as sought in the amended statement of claim; and

3. Costs.

The Application is supported by the grounds on its face and the Affidavit sworn by Angela Nyanjong sworn on 10. 10. 2019.

Despite service, the Respondent did not participate in the said Application.

Claimant’s Contention

Vide the said Application, the Claimant contend that it requested for judgment on 16. 9.2014. That interlocutory judgment and the matter was fixed for formal proof on 27. 9.2017. That after hearing the claim, the Tribunal dismissed the entire claim on 15. 11. 17 on grounds inter alia:

a. That on the face of the document dated 10. 9.1998, there was an attachment on the guarantors that was directed and effected;

b. That there was lack of any loan statement to verify the details of any outstanding sum not received;

c. That the letter dated 16. 7.17 was written by Elizabeth Opondo Kobungu while the 2nd Respondent is Elizabeth Edwin Kobungu and therefore there was a disparity in the names;

d. That the letter dated 16. 7.2017 could not revive the cause of action. As per the letter dated 16. 11. 1990, there is an indication that there was an outstanding development loan of Kshs.8200/= as at March 1991 and there was no evidence tendered to confirm if the loan had been cleared. That there was further no indication as to what outstanding balance the letter of 16. 7.2017 referred to and that the said letter is not an unequivocal acknowledgment of the debt;

e. That here was no proof of lien, trust, or collateral in favour of the Claimant;

f. That while at paragraph 4 of the statement of claim the plot is indicated as LR.No. 14870/495 the letter of 1st July, 1991 (which shows approval) indicates the subject plot as L.R.No.14870/495 and this had not been explained.

g. That there was no evidence that the indication on the purpose for which the loan was taken surrendered the same on security for the loan and the only communication referring to a plot is from the society; and

h. The Claimant failed to prove its case on a balance of probability.

That the Claimant now wants the claim to be reviewed on account of the fact that there is now new and important matters and evidence which could not be produced at the time the judgment was delivered. That these new matters are:

a. That the 1st Respondent had two (2) loans with the Claimant. That the same was development and plot loan;

b. That the said loans were subject to different securities;

c. That the development loan of Kshs.123,000/= is the one which had guarantors and to which the letter dated 10. 9.1998 referred to;

d. That the development loan was never subject to this suit, rather the suit sought recovery of the plot loan;

e. That as regards the plot loan, the 1st Respondent applied for the said loan on or about 16. 11. 1990 to enable him purchase a piece of land in Kahawa which was delineated as LR.NO.14870/478;

f. That on 11. 7.1991, the Claimant approved the Application and the 1st Respondent was granted a loan of Kshs.108,925/= with interest at 12% per annum at a monthly repayment rate of Kshs.1,815. 50/=;

g. That it was a term of the said loan that the title would be registered in favour of the Claimant;

h. That reference to L.R.No. 14870/495 in the approval letter of 1. 7.1999 was a typographical error as the correct property as seen in the correspondence related to LR.NO.14870/478;

i. That the error is evident on the title issued to the 1st Respondent. That instead of describing the plot as LR.NO. 14870/478 it is described as No.14870/495;

j. That the said typographical error was occasioned by the many properties which the Claimant was selling on loan to its many members around the same time. That the Claimant bought a large parcel of land being LR.No.51103 and sub divided it amongst its members who were issued with Certificate of Title and charges registered in its favour.

k. That the Tribunal did not, at the time of hearing, seek clarification of this;

l. That the property was thus transferred in the names of the 1st Respondent on the understanding that the Claimant had beneficial interest on it on account of the loan it advanced him to purchase the same;

m. That it is this evident that the plot did not have guarantors and that the same was the sole security for the loan;

n. That the 1st Respondent failed to service the loan and the Claimant had every right to institute legal proceedings to recover the same.

As regards the name of Elizabeth Edwin Kobungu, vis- a- vis Elizabeth Opondo Kobungu, the Claimant contend that the said names referred to one and the same person.

Disposal of the Application

Vide the directions given on 26. 8.2020, the Application was canvassed by way of written submissions. The Claimant filed the same on 2. 10. 2020. We will consider the same whilst determining the issues raised by the Application.

Issues for determination

We framed the following issues for determination:

a. Whether the Claimant has laid a proper basis to warrant review and/or setting aside of the judgment delivered on 15. 11. 17; and

b. What Orders are available in the circumstances.

Review and/or setting aside of judgment

We have jurisdiction to Review and/or set aside judgment by dint of section 80 of the Civil Procedure Rules and Order 45 of the Civil Procedure Rules. Order 45 of the Civil Procedure Rules provide in this regard thus:

“ Any person considering himself aggrieved-

a. By a decree or order from which an Appeal is allowed, but from which no Appeal has been preferred; or

b. By a decree or order from which no Appeal is hereby allowed,

And who from the discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge or could not be procured by him at the time when the decree was passed or the order made, or on account of some mistake, or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay”

It therefore follows that for the Tribunal to Review its Judgment or orders, the following conditions must exist and/or prevail:

a. Discovery of new or important matter;

b. Mistake or error apparent on the face of the record;

c. Sufficient reason

Additionally, such an Application must be founded without unreasonable delay. This was the holding in the case of Francis Njoroge – vs- Stephen Maina Komore [2018] eKLR.

In the pertinent part, the court held thus:

“ Therefore Order 45 of the Civil Procedure Rules, 2010 is very explicit that a court can only review its orders if the following grounds exist.

a. There must be discovery of a new, and important matter which after the exercise of due diligence, was not within the knowledge of the Applicant at the time the decree was passed or the order was made; or

b. There was a mistake or error apparent on the face of the record; or

c. There were other sufficient reasons; and

d. The Application must have been made without undue delay.

In the case of Muyodi – vs- Industrial and Commercial Development Corporation and Another [2006] EA 243, the court of Appeal had the following to say about an error apparent on the face of the record:

“…in Nyamogo & Nyamogo – vs - Kogo [2001] EA 174, this court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be there no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by long drawn process, of reasoning or on points where there may have conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record, is a possible one, it cannot be an error on wrong view is certainly no ground for a review although it may be for an Appeal.”

With the foregoing principles in the fore, a question arises as to whether the instant Application has met the threshold set out in the foregoing decisions. The Claimant has founded the present Application on the ground that after delivery of judgment, there has been discovery of new and important matters which was not at the disposal of the Tribunal when it delivered its judgment on 15. 11. 17. That the said new and important matter is that in the course of his membership with the Claimant, the 1st Respondent took two (2) types of loans. The first one was a development loan whilst the second one was a plot loan. That the said loans were subject to different securities. That the development loan of Kshs.123,000/= had guarantors and it is the one which the letter dated 10. 9.1998 referred to. That the development loan was never subject to this claim. That this suit solely related to recovery of the plot loan which the 1st Respondent applied for on or about 16. 11. 1990. That the loan was to be applied towards purchase of L.R.No. 14870/478. That it was a term of the said loan that the title would be registered in the name of the 1st Respondent but charged to the Claimant. That reference to plot No.14870/495 in the approval letter dated 1. 7.1999 was a typographical error.

We have perused the judgment sought to be reviewed by the Claimant. We note that the Tribunal dismissed the Claimant’s suit on the following grounds:

a. That the Claimant did not annex and/or produce loan statements to ascertain the exact amounts recovered;

b. That the letter dated 16. 7.2017 relied upon on the argument of revival of cause of action was written by Elizabeth Opondo Kobungu yet the 2nd Respondent is sued as Elizabeth Edwin Kobungu. That there is a disparity in the names and that it is not known whether it referred to one and the same person;

c. That the said letter of 16. 7.2017 cannot be termed as an unequivocal acknowledgement of either debt; That it is thus incapable of reviving any cause of action;

d. That there was no proof of lien, trust or collateral in favour of the Claimant did not produce the title document to the land and/or search to proof existence of the interest or ownership.

e. That there was a discrepancy in the description of the suit property. That while at paragraph 4 of the statement of claim, the plot is referred to as L.R.NO.14870/478, the letter of 1. 7.1991 indicates that the same is LR.NO.14870/495.

Determination discovery of new and important matter

With the foregoing position in the fore, a question arises as to whether the Claimant has satisfied the requisite conditions for review of the judgment. it is noteworthy to restate, that the Claimant has sought to review the judgment based on the following limbs of Order 45of the Civil Procedure Rules.

a. Discovery of new and important matter;

b. Sufficient reason.

For avoidance of doubt, we restate the pertinent part of the Orders as follows:

“ Order 45 Rule.... and who from the discovery of new and important matter or evidence, which after the exercise of due diligence, was not within the knowledge or could not be procured by him at the time when the decree was passed or the Order made......”

It is therefore trite that for a party to succeed in reviewing a judgment or order of the Tribunal on the basis of this principle he/she must not only demonstrate discovery of new and important matter, he must also demonstrate that due diligence had been undertaken to avail the said documents during trial to no avail.

In the present case, the Tribunal made two critical findings. Firstly, that the Claimant did not provide loan statement to prove existence of the loan arrears; secondly, the Claimant did not lead evidence to prove that the suit plot was registered in the name of the 1st Respondent. This is what the Tribunal specifically held:

“ We have the benefit of any loan statements to verify the details of any outstanding sum not recovered. These member loan statements are not the Claimants documents. They have not tendered them I n evidence....There was no prove of lien, trust or collateral in favour of the Claimant. We did not have the benefit of seeking the title document to the land or a search on the same to proof the foregoing interest or even ownership by the deceased. These are matters not proven”

We thus pose the question as to whether loan statements and prove of ownership by way of title document and searches were matters which were not within the knowledge of the Claimant at the time of hearing the claim. Put it the other way round; were these documents incapable of being procured at the time of hearing? Our answer is in the negative. The documents were within the knowledge of the Claimant and were pivotal in the determination of the issues raised by the claim. The Claimant cannot therefore be heard to introduce them at this stage after the Tribunal has pronounced itself on the claim. We therefore find that the Claimant has not provided sufficient material to prove discovery of new and important matter.

Revival of the claim

The Claimant has argued that the Tribunal erroneously took the view that it was uncertain who authored the letter which revived the cause of action. That at paragraph 3 of the statement of claim, Elizabeth Edwin Kobungu is described as the widow of the 1st Respondent. Equally, the letter acknowledging the indebtedness of the 1st Respondent to the Applicant refers to the author, Elizabeth Opondo Kobungu, as the widow of the 1st Respondent. That there cannot therefore be any question as to whether the names refer to one and the same person.

It is our finding that the Tribunal made a finding that there was disparity in the names of the person who authored the letter dated 16. 7.2017. It did so after taking into account all the material before it. The same finding cannot therefore be contested by way of a review. That the best forum to contest it is by way of an Appeal.

Time

It is trite that an Application for review ought to be founded within reasonable time. Judgment in this matter was delivered on 15. 11. 2017. The instant Application was filed on 15. 1.2020. This is a period of over two (2) years. The Claimant has not given even a single explanation as to why it has originated the instant Application after such prolonged and in-coordinate delay.

Conclusion

The upshot of the foregoing is that we do not find merit in the Claimant’s Application dated 7. 10. 2019 and hereby dismiss it with no orders as to costs.

Ruling signed, dated and delivered virtually this 15th day of October, 2020.

Hon. B. Kimemia Chairperson Signed 15. 10. 2020

Hon. F. Terer Deputy Chairman Signed 15. 10. 2020

Mr. P.Gichuki Member Signed 15. 10. 2020

In the presence of Mr. Wakwanya for Applicant

Respondent absent

Hon. F. Terer Deputy Chairman Signed 15. 10. 2020