[2020] KECPT 96 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 285 OF 2019

JOHN MARINGA.......................................................CLAIMANT

VERSUS

HARAMBEE SACCO .............................................RESPONDENT

RULING

What is before us for consideration is the Claimant’s Application dated 23/1/2020. It seeks, in the main, for following orders;-

a.That the Respondent be compelled to supply certified documents of the Kirinyaga Harambee Sacco Branch Minutes of January- March, 2019;

b.The Respondent be compelled to produce certified documents of the Harambee Sacco, Society’s Regulatory Authority (SASRA) report of the year ending, 2018; and

c.Costs.

The Application is supported by the grounds on its face and the Affidavit of the Claimant sworn on even date i.e 23/1/2020.

It is the Claimant’s case that the Respondent is the custodian of the said documents and is thus duty bound to produce the same to enable him properly prepare his defence. That he has previously requested and/or called for the said documents to no avail.

Respondent’s Case

The Respondent has opposed the Application by filing the Replying Affidavit sworn by Rosemary Ouko on 13/2/2020. The gist of the Respondent’s opposition to the Application is that the Claimant could not have been paid allowances for the period he had been transferred as an employee of Kenya Police Service from Kirinyaga. That he was transferred from the Kirinyaga County Branch Headquarters on 16/7/2018. That upon being transferred, he ceased to represent members of Kirinyaga County Branch. That he would only have been entitled to allowances if he continued to represent the said members.

As regards to the demand of documents from SASRA, the Respondent contend that its 2018 report has nothing to do with irregular/illegal allowances earned and/or paid to the Claimant.

That on top of being transferred, the Claimant was also granted leave by his employer to go and pursue his PHD studies in Entious Lorand University Hungary on full mode for four(4) years with effect from 1st September, 2018 to December, 2022.

That as regards the call for the minutes, the Respondent contend that the Claimant has not stated any agenda date of the meetings he allegedly attended to warrant payment of irregular allowances.

Issues for determination

The Claimant’s Application has raised the following issues for determination.

a. Whether the Claimant has raise a proper basis for granting an order of production of documents sought; and

b. Who should meet the costs of the Application.

Production of Documents

Order 14 of the Civil Procedure Rules provides for the production, impounding and return of documents. Order 11 deal with pre-trial directions and conferences. As was held by the court in the case f Oracle Production Limited –vs- Decapture Limited & 3 others [2014]eKLR

“ The true purpose of discovery is to level the litigation field to expedite hearing, reduce costs and allow parties to gauge the case they will face at the trial.”

The Court in the said case went further to underscore the purpose of discovery by citing the explanation given by the Halsbury’s Laws of England thus:

“The function of the discovery of documents is to provide the parties with the relevant documentary material before the trial so as to assist them in appraising the strength or weakness of their relevant cases, and thus to provide the basis for fair disposal of the proceedings, before or at trial. Each party is therefore enabled to see before the trial or to adduce in evidence at the trial relevant documentary material to support or rebut the case made by or against him, to eliminate surprise at or before the trial relating to the documentary evidence and to reduce the cost of litigation”

In the present Application the Claimant wants the Respondent to produce minutes of the meeting held by its Kirinyaga Branches in February and March, 2019. He avers that these minutes are crucial to the preparation of his defence to the counterclaim.

We have perused the counterclaim- It is apparent that the Respondent wants the Claimant to be compelled to refund of the sum of Ksh. 70, 527/- being alleged allowances drawn by the Claimant from August, 2018 to March, 2019. It avers that he did so whilst he had been transferred from the said station.

We have also perused the defence to counterclaim filed by the Claimant on 26/2/2018. It is apparent that he has denied even ceasing to be a delegate of the Respondent of Kirinyaga Branch . He avers that he was not notified that he had since ceased to be so. He has also denied ever being transferred from the said region and/or branch.

Further, he contends that he attended all the delegates meetings, and that all the allowances paid to him were justified and legitimately done in liquid of SASRA report of 2018.

From the foregoing, it is apparent that the issue of contestation is not whether the Claimant was paid the allowances but rather, whether there was a basis for him to be paid the same or not. The Respondent contend that as at the time the Claimant drew the said allowances, he was no longer its delegate as he had already been transferred to Mathira. On his part, the Claimant contend that by the time he drew the allowances, he was the duly elected delegate for Kirinyaga Branch and that he was not notified that he had ceased being a delegate. The question thus to unraveled during trial will be whether as at 16/7/2018, he was still a delegate of the Respondent’s Kirinyaga Branch. Once this issue is unravel, then the issue of payment of allowances will crystalize.

It is on this basis therefore that we do not find the nexus between the instant Application and the Respondent’s claim in the counterclaim. We thus do not find a basis for making an order of production of the Minutes as sought by the Claimant.

SASRA Report

As regards the prayer for production of SASRA report, 2018, we reiterate our findings above and hold that the Claimant has not laid a basis for us to order for production of the said report.

Conclusion

The upshot of the foregoing is that we do not find merit in the Claimant’s Application and hereby disallow it with no orders as to costs.

Ruling read, dated and delivered via email in accordance with the directions given by the Honourable , the Chief Justice on 15/3/2020, this 30th day of April, 2020.

Prepared by Hon. B. Kimemia – Chairman, Hon. F. Terer – Deputy Chairman and P. Gichuki – Member, with the consent of the parties.

The final orders to be delivered by email in accordance to the prevailing measures during the COVID-19.

Hon. B. Kimemia ……………………..

Chairman

Hon. F. Terer ……………………..

Deputy Chairman

P. Gichuki …………………….

Member