[2020] KECPT 100 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 242 OF 2016

JAMES KARIUKI.................................................................CLAIMANT

VERSUS

SIMON GITAHI KARIUKI......................................1ST RESPONDENT

SIMON MWANGI KARIUKI..................................2ND RESPONDENT

JAMES KARIBU.......................................................3RD RESPONDENT

JOHN MAGU.............................................................4TH RESPONDENT

RULING

The 1st and 3rd Respondents have moved the Tribunal vide the Application dated 9/1/2019 seeking for the following reliefs:

1. That this application be certified urgent and notice thereof be dispensed with in the first instance;

2. That the Honourable Tribunal be pleased to grant stay of any further proceedings, save for the hearing of this instant Application, and/or grant stay of execution of the Judgment/Orders/Decree issued on 19th September, 2017 and/or the Orders issued on 7th December, 2017 by the Honourable Co-operative Tribunal pending the hearing and determination of this Application;

3. That the honourable Tribunal be pleased to review, vary and/or set aside the Judgment/Orders/Decree issued on 19th September, 2017 and/or the Orders issued on 7th December, 2017 by the Honourable Co-operative Tribunal pending the hearing and determination of this application;

4. That the Honourable Tribunal be pleased to review, vary and/or set aside the Judgment/Orders/Decree issued on 19th September, 2017 and/or the Orders issued on 7th December, 2017 by the Honourable Co-operative Tribunal;

5. That this Honourable Court be pleased and/or be at liberty to grant any other Order as it deems fit and just; and

6. That the costs of this Application be provided for.

The Application is supported by the grounds on its face and the Affidavit sworn by the 2nd Respondent on even date.

The Claimant has opposed the Application by filing a Notice of preliminary Objection dated 12/7/2019.

1st and 3rd Defendant’s Contention

Vide the instant Application, the 1st and 3rd Respondents contend that since delivery of the Judgment in the matter on 19/9/2017, there has been discovery of new and important matter or evidence that were not availed to the Tribunal by their former Advocate on record namely;

a. That on 22/11/2012, all the 40 members present voted to drop the Co-operative Society as they were unable to follow the law;

b. That the purchaser of the suit property was and still remains Munga Housing as indicted in the Certificate of ownership and the Sale Agreement dated 25/1/2013,;

c. That all members of Munga Housing Co-operative Society Ltd are also the members of Mungu Housing Company Ltd; and

d. That all members were not equal shareholders as they had contributed money in equal amounts and was therefore prudent to protect each member by having a list of all members and their contribution on record.

That in compliance with existing orders, the 1st and 3rd Respondents have surrendered the Original Certificate of ownership serial No. 191 for plot No. 356 to their Advocates for onward surrender to the Tribunal.

That if the Application is not granted, the members of Munga Housing Co-operative Ltd and Munga Housing Co-operative Society Ltd will suffer irreparable loss and damage.

That it has taken long to found the Application because as some point, the 1st and 3rd Respondents previous Advocates on record failed to advise them properly resulting in them being incarcerated at Industrial Area Remand.

Claimant’s Contention

Vide the Notice of preliminary objection dated 12/7/2019, the Claimant contend as follows;

a. That the Respondents have contravened Section 81 of the Co-operative Society Act by not appealing within a period of 30 days;

b. That the Tribunal al lack Jurisdiction to review an order which was arrived at after hearing all parties on merit; and

c. That the Respondents have committed perusing by lying under Oath.

Disposal of the Application

Vide the directions given on 20/1/19, the Application was canvassed by way of written submissions. The 1st and 3rd Respondents filed theirs on 26/8/2019 while the Claimant did so on 20/6/2020. We will consider the same whilst determining the issues raised by the Application.

Issues for determination

We have framed the following issues for determination;

a. Whether the 1st and 3rd Respondents have laid a proper basis to warrant the Tribunal to review the Judgment delivered on 19/9/17; and

b. Who should meet the costs of the Application.

Review of Judgment

We have jurisdiction to review and/or set aside a Judgment and/or Order by dint of Section 80 of the Civil Procedure Act (Cap 21), Laws of Kenya and Order 45 of the Civil Procedure Rules.

Order 45 Rule (1) a provides thus;

“ Any person considering himself aggrieved in (a) by a decree or order from which an Appeal is allowed, but from which no Appeal has been preferred 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 case of the record or for any sufficient reason may apply for a review of the Judgment..”

The Court in the case of Francis Njoroge –vs- Stephen Maina Kanure [2018] eKLR interpreted the Provisions of this Rule as follows;

“ Therefore Order 45 of the Civil Procedure Rules, 2010 is very explicit that a court can only review its order if the following exist;

a. There must be discovery of new and important matter which after the exercise of due diligence, was not within the knowledge of the Applicant at the time the decree was passed or the order was made;

b. There was a mistake or error apparent on the face of the record; or

c. There were other sufficient reasons; and

d. The Application must have been made without undue damage.”

The court of Appeal in the case of Panara T. Swai –vs- Kenya Breweries Ltd[2014] eKLR held it as regards discovery of new and important matter as follows;

“ In Francis Origo and Another –vs- Jacob Kamau Mungula CCA, Civil Appeal No. 149 of 2001 ( unreported), the High Court dismissed an Application for review because the Applicants did not show that they had made discovery of new and important matter or evidence, the witness they intended to call was all along known to them and in any case, the Applicants had filed Appeal which was struck out before the filing of Application for review.”

In the case of Stephen Githua Kimau –vs- Nancy Wanjira Wnung J A providence Auctioneers (2010) eKLR .

The court of Appeal held;

“ An Application for review will only be allowed on strong grounds particularly if its effect will amount to re-opening of the Application or case afresh. In other words, l find no material before me to demonstrate that the Applicant has demonstrated existence or new evidence which he could not get even after exercising due diligence.”

The 1st and 3rd Respondents have founded the instant Application on the 1st limb of the grounds to be satisfied before a review of Judgment or order can be granted - discovery of new and important matter.

From the wording of Order 45 Rule (a) above, a party will succeed on this grounds, if the following conditions are met;

a. Exercise of due diligence; and

b. Material not within the knowledge of the party or could not be produced by him at the time the decree was passed.

With this legal position in mind, the question then arises as to whether the material said to have been discovered by the 1st and 3rd Respondents was not within their knowledge and/or disposal at the time the claim was heard. Put if the other way round, was the material said to have been discovered not capable of being produced before the judgment was passed.

Our understanding of the principle of “discovery of new and important matter is that it was designed to enable and/or assist parties who have discovered important material which was not at their disposal at the time they processed their case for hearing.

From our appreciation of this Application, the material the 1st and 3rd Respondents seek to introduce at this stage is material which was readily available to them when the suit was heard and judgment pronounced.

We have particularly perused annexture SGK – 5 of the annextures attached to the Supporting Affidavit of the 1st Respondent. It is the Agreement for Sale between Simon Hunsa Mwangi and Patricia Wahuka Nyaga on the one hand and Munga Housing Company on the other. Whilst the 1st and 3rd Respondent purport the said Agreement to be a new matter, the same was available and within the knowledge of the Tribunal when it delivered Judgment on 19/9/2019. We have perused the said Judgment and this is what the Tribunal is saying as paragraph 7 thereof;

“ Flowing from above is the question of ownership of plot No. 356. The Claimant produced a Sale Agreement dated 25. 1.2013. It states that the plot was sold to Munga Housing Co-operative Society. The purchase price was Kshs. 800,000. ”

At paragraph 8 of the Judgment the Tribunal held.

“ The Respondents on their part, refer to a Sale Agreement between themselves representative Munga Housing Company and Patricia Wahuka Nyaga and her husband as sellers. The sale is said to have taken place on 25/1/2013. An Agreement was produced [Emphasis ours] It is not dated. As noted earlier, Patricia Wahuka testified. She denied even selling the land to Munga Housing Company. She denied signing the alleged Agreement.”

What we gather from the foregoing is that during hearing, the Respondents advanced a narrative that the owner of Plot No. 356 was Munga Housing Company while the Claimants case was that the said property is owned by Munga Housing Co-operative Society.

Further, it is apparent that the 1st Respondent and one Patricia Wahuka appeared in court to testify.

After considering the evidence produced and the testimony of the parties, the Tribunal held that the plot belonged to Munga Housing Co-operative Society and compelled the Respondents to surrender the certificate of title.

In the present Application, the 1st and 3rd Respondents have sought to review the said Judgment on the basis of the material which was availed to the Tribunal during the hearing of the claim. Secondly, whilst the 1st and 3rd Respondents wish to fault their previous Advocate on record, it is apparent that the 1st Respondent appeared in court to testify and that he had the prima case opportunity to advance the Respondent’s case to the fullest.

We thus find that the instant Application is an Appeal disguised as on Application for Review of Judgment.

Conclusion

The upshot of the foregoing is that we do not find merit in the Application and hereby dismiss it with costs to the Claimant. Subsequently, the Notice of Preliminary Objection succeeds only to the extend of grounds (b) and (c). Orders accordingly.

Ruling read, dated and delivered online this 23rd day of July, 2020.

Hon. B. Kimemia Signed Chairman

Hon. F. Terer Signed Deputy Chairman

P. Gichuki Signed Member