[2024] KECPT 1182 (KLR)

Erastus v Board of Directors of Suluhu Savings and Credit Coop Society Limited (Tribunal Case 20/E029 of 2023) [2024] KECPT 1182 (KLR) (25 July 2024) (Ruling)

Neutral citation: [2024] KECPT 1182 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 20/E029 of 2023

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

July 25, 2024

Between

Mike Munyasya Erastus

Claimant

and

Board of Directors of Suluhu Savings and Creidit Coop Society Limited

Respondent

Ruling

1. The suit herein was filed by the Claimant on the 19th January, 2023 seeking reliefs against the Respondent in respect to election disputes.The Respondent filed a Statement of Defence in response to the claim.After several court attendances for directions and failed attempt to settle the matter out of court, the claimant filed a Notice of Withdrawal of suit wholly, on 12th January 2024. However, the issue of costs remained pending and he parties attempted unsuccessfully to reach an amicable settlement of the same.The issue of costs sought by the Respondent was therefore left for this Tribunal to determine on the basis of submissions of both parties.

2. The matter proceeded by way of written submissions.The Claimant’s submissions dated on 30th January, 2024 were filed on 19th March, 2024 and the Respondent’s submissions dated 5th February, 2024 were filed on 19th March, 2024.

Claimant’s Submissions 3. The Claimant states in his submissions that the injunctive orders sought in the claim were overtaken by events when the Tribunal declined to issue injunctive orders ex-parte, that as a result the Claimant was left with no alternative but to withdraw the claim, as he did through a Notice of Withdrawal dated 10th January, 2024. According to the Claimant, the only pending issue before the Tribunal is whether the Claimant ought to be compelled to pay the costs of this suit to the Respondent.

4. The Claimant cites case law submits that an award of costs is a matter of judicial discretion as provided for by the section 27(1) of the Civil Procedure Act; “that this discretion must be exercised judicially and that it must not be exercised arbitrarily but in accordance with reason and justice; that in determining whether to make an award of costs or not a court ought to consider:-a.The conduct of the partiesb.The subject of litigationc.The circumstances which led to the institution of the proceedingsd.The stage at which the proceedings were terminated.e.The events which eventually led to the terminationf.The way the proceedings were terminated.

5. The Claimant further submits that the Tribunal ought not to punish the Claimant for exercising his Constitutional right to bring a justified a claim before it. This assertion is made on the basis of the decision of the supreme court in Jasbir Singh Rai &3 others versus Tarlochan Singh Rai &4 others [supra]; wherein in declining to grant costs, the supreme court stated that “it is plain to us that, at the time the petition was lodged in the Supreme Court, it was, in every respect, a valid cause of actions; and thus, no blame attaches to the act of filing”The Claimant concludes by urging the Tribunal to decline the Respondent’s prayer for costs.

Respondent’s Submissions 6. The Respondent submits that upon being served with the statement of claim and application, the Respondent promptly entered appearance and filed a statement of Defence and a Replying Affidavit on 1. 2.2023; that on 10. 2.2023, the Claimant informed the tribunal that he intended to amend his Statement of Claim and a mention date of 19. 6.2023 was set to confirm filing of the Amended Statement of Claim, that on 19. 6.2023 the Claimant backtracked on his intended amendment of the Statement of Claim and stated that he wished to settle the matter out of court that the case was subsequently mentioned on two further dates on 17. 10. 2023 and 8. 12. 2023 before the Tribunal that he had filed a Notice of Withdrawal of the claim; that under the Civil Procedure Act, the costs follow the event unless the court or Judge shall, for good reason otherwise order.The respondent submits further that in the case of Samson K.A. Tim -versus – D.M Machage[2019] eKLR, the High Court [E.M.Murithii J] stated that once a suitor withdraws a suit wholly, the suitor must as a general rule pay to the Defendant the costs of the suit and that there is no reason to depart from this rule in this case.

7. The Respondent reciprocates further that the issues raised by the Claimant in his submissions which are about the merits of the case cannot be a factor for consideration in determining the issue of costs; that the Claimant did not immediately withdraw the suit upon realizing the substratum had been lost instead he dragged the proceedings for about one year and sought to amend the Statement of Claim to give the claim a lifeline.

8. In conclusion, the Respondent submits that the Respondent is entitled to costs and requests the Tribunal to assess the costs.

Determination 9. We have considered the submissions of parties and the authorities cited by the parties and observe that indeed the Respondent filed Defence to the suit and made several court attendances in the matter which took over one year before the claim was withdrawn.

10. We find that the circumstances in the supreme court case cited by Claimant [Jasbir Singh Rai & 3 others versus Tarlochan Singh Rai & 4 others [supra] were in consideration of the specific nature of the case and do not apply hereto.

11. In the circumstances of the instant case therefore we do consider that the Respondent, having filed Defence to the claim and having participated in the case for about one year. Consequently, we exercise our discretion in favour of the Respondent and order as follows:a.The Respondent is awarded costs of this suit.;b.The Respondent to within fourteen (14) days from the date hereof, file and serve its Bill of costs against the Claimant for taxation.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 25TH DAY OF JULY, 2024. HON. B. KIMEMIA - CHAIRPERSON SIGNED 25. 7.2024HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 25. 7.2024HON. BEATRICE SAWE - MEMBER SIGNED 25. 7.2024HON. FRIDAH LOTUIYA - MEMBER SIGNED 25. 7.2024HON. PHILIP GICHUKI - MEMBER SIGNED 25. 7.2024HON. MICHAEL CHESIKAW - MEMBER SIGNED 25. 7.2024HON. PAUL AOL MEMBER - SIGNED 25. 7.2024Tribunal Clerk JemimahMiss Achieng advocate for the Claimant holding brief for Ms. Mutemi for the Claimant.Muigai advocate for Respondent.Ruling on costs delivered mention for confirmation of Bill of Costs on 7. 10. 2024. the Respondent to file their Bill of Costs within 14 days herein and Respondent to file and serve their Bill of Costs within 14 days of service.Mention on 7. 10. 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 25. 7.2024