[2025] KECPT 236 (KLR)

Fen Sacco Society Limited v Mayaka (Tribunal Case 1021 of 2018) [2025] KECPT 236 (KLR) (27 March 2025) (Ruling)

Neutral citation: [2025] KECPT 236 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 1021 of 2018

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

March 27, 2025

Between

Fen Sacco Society Limited

Claimant

and

Jared Maoro Mayaka

Respondent

Ruling

1. The Notice of Motion Application dated 13th August, 2024 is brought under Order 45, Order 51 of the Civil Procedure Rules, Section 1A, 1B, 3A and 63 (e) of the Civil Procedure Act and Article 159 of the Constitution of Kenya seeking among others Orders:1. Spent2. That the Honourable Tribunal be pleased to review its ruling and subsequent orders delivered dated 30th November, 2023.

2. The Application was supported by the annexed Affidavit of JARED MAORO MAYAKA on the grounds:i.That the Claimant moved the Honourable Tribunal through an Application dated 17th February 2023ii.That the Respondent responded to the said Application through a Replying Affidavit dated 21st November 2023 and filed Written Submissions dated 21st November 2023iii.That the Honourable Tribunal proceeded to deliver its ruling on the 30th November 2023 without considering the Respondent's Replying Affidavit or Written Submissions and allowed the said Application as prayed.iv.That had the Honourable Tribunal taken into consideration the Respondent's Replying Affidavit and Written Submissions, they would have arrived at a different conclusion.

3. In summary, the contents of the Replying Affidavit dated 21st November, 2023 (that were allegedly ignored by the Honourable Tribunal) were that the Respondent had read and understood the contents of the Claimant’s Notice of Motion dated 17th February 2023 and the Supporting Affidavit sworn on the same date and stated among others:a.That the Honourable Court gave an order on the 16th of February 2023 dismissing the Claimant's Notice of Motion dated 22nd December 2020 seeking the Respondent's response to the Claimant's Memorandum of Claim to be struck off for non- attendance and want of prosecution.b.That when the Honourable Tribunal dismissed the Claimant's Application, it did not close the door of justice as the Claimant could still proceed with its claim, since only the Application had been dismissed.c.That the Respondent relying on the mistake of its advocate to set aside the ruling of the court and have the application dated 22nd December 2020 reinstated is not a sufficient and proper excuse.d.That the court having dismissed the Claimant's Notice of Motion dated 22nd December 2020, the Claimant still had an opportunity to ventilate their claime.That the Application by the Claimant wanting the court to revisit its decision was placed in bad faith.f.That the Claimant would have suffered no prejudice if the application was not allowedg.That the Claimant's Notice of Motion dated 22nd December 2020 which was seeking for striking out of the Respondent's response was purely made in utmost bad faith as the same was touching on technicality.h.That article 159 (d) of the Constitution provides that the court will always endeavor to administer justice without necessarily dwelling on technicalitiesi.That therefore the Application filed by the Claimant seeking reinstatement of the earlier application is not only totally misplaced but an affront abuse of the due court process.j.That it is therefore in the interest of justice that the Application be dismissed and the Claim filed by the Claimant to proceed.

4. This Tribunal on 20th August, 2024 gave directions for the Application to be served. The Claimant’s through their Chairlady LEAH WAHEIRE filed a Replying Affidavit in opposition to the Application dated 13th August, 2024 stating among others:i.That the Application to review the ruling issued on 30th November 2023 is a clear afterthought since the application is made on the 13th August 2024, ten months after the delivery of the ruling by the Tribunalii.That the Respondent upon realizing that they cannot proceed with the strict directions given by the Honorable tribunal on 7th August 2024 swiftly filed an Application to review the ruling that reinstated the Claimants motioniii.That the Application is improperly made in law as the grounds and matters alleged by the Respondent do not fall under the umbrella of review as elaborated under Order 45 of the Civil Procedure Rulesiv.That the Respondent is employing delaying tactics to prevent the expeditious disposal of the matterv.That the Respondent Advocate choose not to attend court despite service and being aware of the proceedings, and the application is filed to waste time of the court.

5. This Tribunal on 7th August, 2024 gave directions for the Application to be dispensed with by way of written submissions. The Claimant filed their submissions dated 31st Oct., 2024 in opposition to the Application stating among others:I.That the narration of the Respondent in the Replying Affidavit sworn on 13th August, 2024 is scandalous, frivolous and vexatiousII.That the Application to review the ruling issued on the 30th November 2023 is a clear afterthought since the Application is made ten months after the ruling of the Honorable Tribunal, and it is made upon the Respondent realizing that they cannot proceed with the strict directions given by the Tribunal on the 7th August 2024. III.That the Application is improperly made in law as the grounds and matters alleged by the Respondent do not fall under the umbrella of review as elaborated under Order 45 of the Civil Procedure Rules

6. The Respondent did not file any written submissions.

7. We have considered the Application and the documents attached to it, the Replying Affidavit and written submissions filed by the Claimant, and the only question remaining for determination is as to whether the threshold for review has been met.

8. Has the threshold for review been met?

9. Order 45 Rule 1 of the Civil Procedure Rules provides the grounds for review and it states: -Application for review of decree or order.1. 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; orb.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 his knowledge or could not be produced 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.2. A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review”

10. The Rules limit the grounds for review to be: -a.discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or;b.on account of some mistake or error apparent on the face of the record,c.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

11. First, in as much as it is important that this Tribunal looks extensively at the grounds submitted in support for the Application for review (that the Tribunal did not consider the Respondent’s Replying Affidavit and Written Submissions, which if it could have considered, it may have reached a different conclusion), it is important to note that the same (Replying Affidavit and Written Submissions) were filed out of time and were not in the Tribunal’s records as at the time of writing the judgement delivered on 30th November, 2023.

12. Second, It is also important that we state that there are some conditions that must first be satisfied by a party, before appealing for a courts discretion. Some of these conditions are captured in law, like the condition of making an application for review ‘without unreasonable delay!’

13. In line with that condition, we are not persuaded that an Application made 10 months after a ruling has been made without unreasonable delay - given that this matter was filed in 2018 and is even yet to be set for pre-trial. It is important to grudgingly also note that the Respondent has in every occasion not adhered to the strict timelines set for filing when clear directions have been given for compliance to timelines.

14. This Tribunal in line with Article 50 (2)(e) of the Constitution, is mandated in the interest of fair trial to begin and conclude matters without unreasonable unjustified delays. As such, we have conducted an objective analysis on the issues raised by both parties and the likely prejudice if this case is delayed any further, and it is our considered position that this matter has to proceed for determination on merit at the expense of applications that don’t go into the crux of the issues raised in the Statements of Claim or Defence.

Final Orders:i.The Notice of Motion Application dated 13th August, 2024 found to be without merit is dismissed.ii.Costs in the causeiii.The Respondent to file his Defence/Amended Defence and all other necessary documents within 7 days from the date of this rulingiv.Mention for pre-trial directions on 18. 9.2025.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF MARCH, 2025. HON. B. KIMEMIA CHAIRPERSON SIGNED 27. 3.2025HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 27. 3.2025HON. BEATRICE SAWE MEMBER SIGNED 27. 3.2025HON. FRIDAH LOTUIYA MEMBER SIGNED 27. 3.2025HON. PHILIP GICHUKI MEMBER SIGNED 27. 3.2025HON. MICHAEL CHESIKAW MEMBER SIGNED 27. 3.2025Tribunal Clerk JonahMs. Kipruto advocate for the ClaimantMs. Okumu advocate holding brief for Mr. Nyangito advocate for the RespondentHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 27. 3.2025