[2023] KECPT 50 (KLR)
The Tribunal found that it is fair and just to allow the substitution of the respondent's witness to reflect the current official, as the deponent of the written statement must testify at trial. Regarding the recusal request, the Tribunal determined that there was no evidence that PN Gichuki, a member of the...
Source-derived case information.
- Citation
- [2023] KECPT 50 (KLR)
- Parties
- Applicant: Margaret Wairimu Gaacheru; Respondent: Boots Sacco Ltd
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 4 of 2019
- Procedural Posture
- Civil Application / Ruling on Interlocutory Application
- Outcome
- Application allowed in part.
- Judges
- M Mwatsama, Gitonga Kamiti, M. Mbeneka
- Legal Topics
- Witness Substitution, Recusal of Tribunal Member, Costs of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Wairimu Gaacheru
Applicant
Boots Sacco Ltd
Respondent
Procedural Posture
Civil Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the respondent should be allowed to substitute its witness with the current Deputy Chairman.
- 2 Whether PN Gichuhi/Gichuki should recuse himself from the hearing due to alleged authorship of a report.
- 3 Who should bear the costs of the application.
Ratio Decidendi
The Tribunal found that it is fair and just to allow the substitution of the respondent's witness to reflect the current official, as the deponent of the written statement must testify at trial. Regarding the recusal request, the Tribunal determined that there was no evidence that PN Gichuki, a member of the Tribunal, authored the report in question. The clarification from the Commissioner of Co-operatives confirmed that the author was PN Gichuhi, who is not a member of the Tribunal. Therefore, there was no basis for recusal. The application was allowed only to the extent of permitting witness substitution, with each party to bear their own costs.
Court Disposition
Application allowed in part.
Orders
- The respondent is allowed to substitute its witness with the current Deputy Chairman.
- The request for recusal of PN Gichuhi/Gichuki is denied.
Full Case Text
Judgment text and source record
23 paragraphs
Gaacheru v Boots Sacco Ltd (Tribunal Case 4 of 2019) [2023] KECPT 50 (KLR) (Civ) (16 February 2023) (Ruling)
Neutral citation: [2023] KECPT 50 (KLR)
Republic of Kenya
In the Cooperative Tribunal
Civil
Tribunal Case 4 of 2019
M Mwatsama, Vice Chair, Gitonga Kamiti & M. Mbeneka, Members
February 16, 2023
(Coram before Hon. Mjeni Mwatsama-D/Chairperson, G. Kamiti and M. Mbeneka)
Between
Margaret Wairimu Gaacheru
Claimant
and
Boots Sacco Ltd
Respondent
Ruling
1. The Application for determination is Notice of Motion dated November 9, 2021 by Respondent/Applicant which Application seeks for the following orders;-a.That, the Applicants be allowed to substitute its witness with the current Deputy Chairman;b.That, one PN Gichuhi/Gichuki be pleased to recuse himself from the hearing of this matter; andc.That, each party do bear their own costs of this application.The same is supported by the Supporting Affidavit of George Ochieng Majera sworn on November 9, 2021.
2. The Application is unopposed. There are two issues to be resolved one, substitution of the written statement of the Chairman which the Respondent avers there is a new Chairman thus need to change the same For the substitution, we shall not belabor the point. At time of trial we shall need the deponent of the written statement to testify and if there has been a change in officials it is only fair and just to allow the substitution of the written statement to reflect the correct position of Respondent while giving evidence.
3. The 2nd issue is one of whether the report as attached as “GO-1 emanates from a member of the Honourable Tribunal that is PN Gichuki.The Applicant avers they need to be sure that the said PN Gichuhi (Member) of the Co-operative tribunal is not its author for there to be fair trial.We note the said document “GO-1” is not clear on PN Gichuhi or PN Gichuki.To avert any other misunderstanding the Honourable Tribunal through its letter dated November 3, 2021 wrote to the Office of Commissioner of Co-operatives to get a clarification as to the author of the said documents.The letter was responded vide letter dated February 2, 2023 Priscilia Maranga who confirmed the document dated January 23, 2015 was from one PN Gichuhi.The said PN Gichuhi is not a member of the said tribunal and as such PN Gichuki can be in the bench to preside over the matter.A copy of the said letter from the Commissioner office is attached.
4. The issue of authorship of letter having been considered and determined we direct Applicant to substitute their written statement 21 days from today.
UPSHOT 5. Application dated November 9, 2021 is allowed in terms of;-
a.That, the Applicants be allowed to substitute its witness with the current Deputy Chairman; allowed.b.That, one PN Gichuhi/Gichuki be pleased to recuse himself from the hearing of this matter- fails.c.Each party to bear their own costs.d.Mention on May 3, 2023 to fix matter for hearing.
RULING, READ AND DELIVERED VIRTUALLY ON 16TH FEBRUARY, 2023. Hon. Mjeni Mwatsama D/Chairperson Signed 16. 2.2023Gitonga Kamiti Member Signed 16. 2.2023Maria Mbeneka Member Signed 16. 2.2023In the presenceMacharia Advocate hold brief for Mr. Mbuthia for the RespondentNo Appearance by ClaimantJ. Mutai – C/AssistantSignedHon. Mjeni MwatsamaDeputy Chairperson16/2/23