[2021] KECPT 258 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 316 OF 2020

GAKUO NG’ANG’A.................................................CLAIMANT

VERSUS

METROPOLITAN SAVINGS & CREDIT

SOCIETY LTD....................................................RESPONDENT

RULING

1. This Claim was instituted by way of a Statement of Claim filed on 24th September 2020. Summons were issued and the same were extracted and served upon the Respondent on 6th November 2020. Subsequently, the Respondent filed a Statement of Defence dated 2nd December 2020 and denied liability. The Claimant proceeded to file a Reply to Defence on 10th December 2020.

While this was ongoing the Respondent on 26th November 2020 made a payment of Kshs. 520,891/= to the Claimant. This was clearly after the Claim had been filed, and Summons to Enter Appearance served upon the Respondents, who were by this time aware of the filed suit.

2. It is also noteworthy that the Claimant did write a Demand Letter dated 5th November 2019, whose effect was to attempt to make the Respondent pay the amounts due before a suit is filed. On record also are letters requesting for a refund of the Claimant’s share contribution from the Respondent, and a forwarding letter of the Claimant’s retirement. The letters are dated 4th March 2019 and 11th March 2019 respectively.

3. ISSUES FOR DETERMINATION

We have considered the Pleadings filed and the robust written submissions of the parties, which were well argued. This Tribunal has framed the following issue as necessary for determination;

(a) Whether the Claimant is entitled to costs of the suit.

We thus proceed to rule as follows:

WHETHER THE CLAIMANT IS ENTITLED TO COSTS

From the record, the Claimant issued a letter dated 4th March 2019 requesting for a refund of the Claimant’s share contribution from the Respondent. The Respondent did not act on it, necessitating the Claimant to write a Demand letter dated 5th November 2019, which the Respondent again failed and/or refused to act on. Subsequently, a suit was filed on 24th September 2020, almost a year after the Demand letter was issued.

4. On realizing that a Claim had been filed, the Respondent, in lightning speed, disbursed payments of the to the Claimant. The Claimant has requested for costs, since if the Respondent had paid the Claimant as initially requested, there would be no need to file a suit and incur expenses, a position that this Tribunal agrees with. The Claimant’s case would have been successful, and the Respondent decided to pull the rag off the Claimant’s Claim. In that case, costs would have followed the event, in line with Section 27(1) of the Civil Procedure Act.

While this Tribunal encourages parties to settle claims out of court, this ought to be done without malice, and timeously. The Respondent’s actions smack of bad faith, having dillydallied with the refunds due to the Claimant and only prodded into action by the instant Claim. Whoever approaches equity must do so with clean hands, and the Respondent’s soiled hands are easily identifiable. Section 27(1) of the Civil Procedure Act bestows this Tribunal with discretion to apportion costs, and on the basis of the foregoing, we find that the Claimant is entitled thereto, and we thus so order.

The Claimant is directed to file a Bill of Costs within 30 days hereof.

Mention to take further directions on 9. 11. 2021. Notice to issue.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2ND DAY OF SEPTEMBER, 2021.

Hon. B. Kimemia Chairperson Signed 2. 9.2021

Hon. J. Mwatsama Deputy Chairperson Signed 2. 9.2021

Mr. Gitonga Kamiti Member Signed 2. 9.2021

Mr. B. Akusala Member Signed 2. 9.2021

Tribunal Clerk R. Leweri

Mr Ngethe Advocate holding brief for Mr Wainana for Claimant: Present

Hon. B. Kimemia Chairperson Signed 2. 9.2021