[2020] KECPT 111 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO. 418 OF 2017

JACOB KYALO MATINGI...................CLAIMANT

VERSUS

MUKA MUKUU FARMERS CO-OPERATIVE

SOCIETY LIMITED...................1ST RESPONDENT

SIMON KANGIRI MUTEMA...2ND RESPONDENT

RULING

What is before us for consideration and determination are the following Applications by the 1st Respondent;

The application dated 27. 6.2019, and

The application dated 17. 2.2019.

The Application dated 17. 2.2019 is spent as it sought stay orders pending the hearing and determination of the Application dated 27. 6.2019.

We will thus consider and determine the Application dated 27. 6.2019.

Application dated 27. 6.2019

This Application seeks for orders inter alia:

That the application be certified as urgent and heard exparte in the first instance;

That the Honorable Tribunal be pleased to stay execution of part of the Judgment and Consequential Orders delivered on 4th October, 2018 to costs only pending the hearing and determination of the application;

That the Honorable Tribunal be pleased to review the exparte Judgment and Consequential Orders made on 4th October, 2018 dismiss the claim for want of jurisdiction ;

That in the alternative, the Honorable Tribunal be pleased to review its Judgment and Consequential Orders thereto delivered on 4th October, 2018 by exempting or discharging the 1st Respondent from paying costs of the claim; and

That the costs of this application be provided for.

The Application is supported by the grounds on its face and the Affidavit sworn by Peter Mulili on even, date that is 27. 6.2019.

Vide the said Application, it is the Claimant’s case that the judgment entered against it on 4. 10. 2018 is null and void ab initio as the Tribunal lacked jurisdiction to entertain the suit in in the first place. That the Tribunal proceeded to award costs to the Claimant without specifying who was responsible to meet such costs. That from the pleadings filed, it was apparent that the claimant did not have a cause of action against it (the Respondent). That it’s attempt to have its name struck out was thwarted by the Tribunal when it declined to allow it file a defence out of time.

The Claimant has opposed the application by filing a Replying Affidavit sworn by Jacob Kyalo Matingi on 17. 9.2019. Vide this Response the Claimant contend that the 1st Respondent is precluded from raising the issue of jurisdiction at the execution stage as the same is time barred. That this Tribunal has jurisdiction by dint of section 76 of the Co-operative Societies Act(Cap 490) Laws of Kenya to entertain the dispute.

That as regards the issue of cause of action, the Claimant contend that the Respondent is the custodian of the suit property and that it has a duty to transfer the same to him.

That as regards the issue of costs, the same is a matter of discretion for the tribunal.

Written submissions

Vide the directions given on 22/01/2020, the Application was canvassed by way of written submissions. The 1st Respondent filled its submissions on 31/01/2020 while the Claimant did so on 6/02/2020.

Vide his submissions, the 1st Respondent contend that the Tribunal did not have jurisdiction to entertain the suit by dint of section 76 of the Co-operative Societies Act and that it is only the Environment and Land Court which possess the said jurisdiction. He referred to the cases of:

PAUL MUTUA MUTWIWA VERSUS KIMEU KYUMBU & TWO OTHERS [2014] eKLR

TORATIO NYANG’AU AND 4 OTHERS VERSUS LIETEGO FCS LIMITED (2011) eKLR

SEVEN SEAS TECHNOLOGIES LIMITED VERSUS ERIC CHEGE (2014) eKLR

D.T.DOBIE AND COMPANY LIMITED VERSUS MUCHINA (1982) KLR and

CECILIA KARURU NGAYU VERSUS BARCLAYS BANK OF KENYA AND ANOTHER (2016) eKLR

On his part, the Claimant, vide his written submissions contend, that the 1st Respondent has not satisfied the laid down principles for review and/or setting an ex parte Judgment. That the 1st Respondent does not state whether it has discovered a new and important matter or that there was an error apparent on the face of the record. That the dispute herein is within the jurisdiction of the Tribunal as provided for in section 76 of the Act. That the dispute is not about ownership of land but rather allocation of property from share number 242 and member number 241. That section 81 of the Co-operative Societies Act (Cap 490) provides that the High Court is an Appellate Court for purposes an Appeal against the decision of the Tribunal.

Issues for Determination

We have framed the following issues for determination:

Whether the 1st Respondent has laid a proper basis to warrant the Tribunal to Review and/or set aside the judgment delivered on 4. 10. 2018;

Who should meet the cost of the Application.

Review of the Judgment

This Tribunal has jurisdiction to Review its judgment and/or orders by dint of section 80 of the Civil Procedure Act (Cap 21) Laws of Kenya or order 45 of the Civil Procedure Rules. Order 45 Rule (1) (a) and (b) provide thus:

“ Any person considering himself aggrieved –

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

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,….. may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”

It thus follows that for a judgment to be reviewed, the following conditions must be satisfied;

That there is discovery of new and important matter or evidence;

There is a mistake or error apparent on the face of the record; and

For sufficient reason.

The question that arises is whether the instant Application satisfies these conditions. It is the 1st Respondent’s case that the Tribunal did not have jurisdiction to entertain the matter as the issues in dispute related to ownership of land and that the only court vested with jurisdiction to determine the same is the Environment and Land Court (ELC).

On its part, the Claimant contend that the Claimant does not meet the threshold set out in order 45 Rule 1 (a) and (b) above and that the Application should be dismissed with costs.

The background to this Application is that the Claimant sued the Respondents vide a statement of claim dated 6. 6.2017. Both Respondents did not enter appearance or file a Response within the time limited by Law. The matter was set down for formal proof.

When the 1st Respondent learnt about the existence of the suit, it filed an Application dated 25. 9.2017. The said Application sought leave to be allowed to defend the claim. The said Application was heard and dismissed on 11. 12. 2017.

We have perused paragraph 7 of the statement of Response to the claim dated 24. 7.17, and filed on 26. 7.2017. The said Response was annexed to the Application dated 25. 9.17. At paragraph 7 thereof, the 1st Respondent has admitted the jurisdiction of this Tribunal to entertain the claim.

Upon dismissal of the said Application on (11. 12. 17), the 1st Respondent kept quiet until 28. 6.2019 when it filed the instant Application.

Coming back to the conditions for Review of a judgment, it is the 1st Respondent’s gravamen that this Tribunal did not have jurisdiction to entertain the suit in the first place. We find that this contention does not satisfy any of the Principles for setting aside a judgment. We have perused the proceedings in the file and especially the said judgment and note that the issue of jurisdiction is not an error apparent on the face of the record. It is a substantive point of law which cannot be canvassed by way of a Review. The best forum it would have been for the 1st Respondent to pursue its Right of being heard on merits by either moving the Tribunal for Review of the Ruling delivered on 11. 12. 2017 or Appealing against the Ruling altogether.

We say so taking into account the fact that the Claimant had expressly admitted the jurisdiction of the Tribunal to ascertain this claim vide its statement of Response filed on 26. 7.2017.

Conclusion

The upshot of the foregoing is that we do not find merit in the 1st Respondent’s Application dated 27. 6.2019 and hereby dismiss it with costs to the Claimant.

Read and delivered in accordance with the guidelines issued by the Hon. Chief Justice on 15. 3.2020, this 9thday of April, 2020.

Prepared by Hon. B.Kimemia Chairman, Hon. F. Terer Deputy Chairman, P. Gichuki Member.

With consent of the parties, the final orders to be delivered by email, as accordance to the prevailing measures during the covid-19.

Hon. B. Kimemia Chairman Signed 9. 4.2020

Hon. F. Terer Deputy Chairman Signed 9. 4.2020

P. Gichuki Member Signed 9. 4.2020