[2025] KECPT 276 (KLR)

Kamau & others v Technical Teachers Sacco & another (Tribunal Case 1 of 2017) [2025] KECPT 276 (KLR) (29 April 2025) (Ruling)

Neutral citation: [2025] KECPT 276 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 1 of 2017

BM Kimemia, Chair, Janet Mwatsama, B Sawe, F Lotuiya, P. Gichuki & M Chesikaw, Members

April 29, 2025

Between

Njuguna Kamau & others

Claimant

and

Technical Teachers Sacco & another

Respondent

Ruling

1. The Appellant’s Notice of Motion Application dated on 28th January 2025 filed on 8th February 2025 is before us for determination

2. Therein the Appellants have prayed for the following orders:-1. Spent2. That this Honourable court to make an order to summon one Nancy Kinyanjui to attend court personally and be cross -examined on the contents of the Respondents replying affidavit dated 4th April 20243. That the Respondent’s replying affidavit dated 4th April 2024 be declared untruthful and be expunged from the court record4. That the cost of this application be provided on the cause the application is premised on the grounds on the face thereof and is supported by the annexed affidavit of Oyaro Mwamba sworn on 28th January 2025

2. The grounds of the application and that on the reply to the appeal herein which was subsequently amended the representative of the Respondent Nancy Kinyanjui made on Replying affidavit on oath dated 4th April 2024 wherein the deponed falsely that she is the Chairperson of the Respondent that the Replying Affidavit was deliberately made to mislead the Honourable court and to the detriment of the Appellants that its true and correct chairman of the respondent is one Mathew Ogola Bonyo that the Appellants will be highly prejudiced id the said replying affidavit will remain on record as same is likely to be taken into account when the court will be making it findings in the determination of the Appeal that the representative has not annexed copies of the minutes authorizing her to depone to a Replying Affidavit on behalf of the respondent as required by the law that the said deponent be summoned to attend court and explain why she gave false evidence on oath.

3. The Supporting Affidavit reiterates the grounds on the face of the Application and has annexed thereto as exhibit DM2 a document which the represents as the Respondent’s minutes.

4. In response to the Application the Respondent filed a Replying Affidavit sworn by Nancy Kinyanjui on 14th February 2025 therein the deponent states that the Memorandum of Appeal herein was served upon the Respondent in August 2022 and the Management Committee which she was on 29th February 2023 member authorize her to represent the Respondent until the Appeal is heard and determined that she has faithfully represented the respondent in this matter with the Respondent full authority that she is the current Vice- chairperson of the Respondent and the Chairperson of the Committee charged with the responsibility of following up this case with the Respondents authority and duly authorized to swear the Affidavit herein on behalf of the Respondent that on 6th April 2023 the SACC0 held its Annual General Meeting wherein the deponent was voted in as on e of the members of the management committee that the management and Supervisory Committee held a subsequent meeting on 13th April 2023 in which the deponent was elected as the vice chairperson of the Respondent and the Chairperson of the committee to oversee the process of plot division which is the subject of this appeal deponent clarifies that she is the vice chairperson of the respondent and not the chairperson as stated in the affidavit sworn on 4th April 2024 which she avers a typographical error by the advocate while typing the affidavit that there is a therefore no misrepresentation and the Appellants will suffer no prejudice that her authority to act on behalf of the Sacco has never been revoked that in light of Article 159 (2) (d) of the Constitution justice ought to be administered without undue regard to procedural technicalities annexed to the Replying affidavit is a copy of a resolution dated 29th January 2023 marked as exhibits NC-1 and the minutes of a meeting he said to be held on 13th April 2023 marked as exhibits NC-3 the appellants had not filed written submissions as at the date of writing this Ruling

5. The Respondent had filed written submissions dated 19th march 2025

Analysis and Determination 6. We have considered the documents filed by the parties herein including the written submissions of the Respondent with the case law cited therein and the only coming up is whether or not the appellants applicants are entitled to the orders sought we note that whereas the deponent of the Replying Affidavit date sworn on 4th April 2024 has described herself as the chairperson of the Respondent she has in the affidavit in the application herein stated that she is the vice -chairperson of the society and the description of herself in the Replying affidavit sworn on 4th April 2024 was erroneously indicated as the chairperson by the advocate who prepared the Affidavit.

7. We have or see no reason to doubt the deponent’s averments as she has produced signed minutes of the meeting of 13th April 2023 wherein indicated as a Vice -chair of the Management Committee it is trite that a litigant shall not be punished for the errors of her advocate the Affidavit in question contains a wrong description of a deponent

8. In our view the Affidavit is neither scandalous ,irrelevant of oppressive to warrant sticking out Order 19 Rule 7 of the Civil Procedure Rules provides that court may receive any Affidavit sworn for the purpose of being used in any suit notwithstanding any defect by misdescription of the parties or otherwise in the title or other irregularities in the form thereof or on any technicalities

9. This Tribunal therefore going forward takes cognizance of the erroneous description deponent of the affidavit sworn on 4th April 2024

10. The Appellants averment that the deponent of the Affidavit sworn on 4th April 2024 was not authorized by the Respondent has be disponed by the evidence of the resolution dated 29th January 2023 in the absence of aby from the Appellants to dispute the authority of the deponent to represent the Respondent in this matter we have no reason to interfere with the deponent’s representation of the Respondent

11. In the upshot we find that the Appellant’s Notice of Motion Application dated 28th January 2025 lacks merit and the same is hereby dismissed with no order as to costs.

Ruling of Costs of the Notice of Preliminary Objection dated 31st July 2024 12. The Notice of Preliminary Objection filed by the Appellants herein was marked by this Tribunal on 10th February 2025 and the Respondent’s advocates sought to be awarded thereof whereas the advocates of the Appellants prayed that costs be in the cause whereas parties were directed to address the issue of the costs of the Preliminary Objection in the submissions of the Appellant’s Application dated 28/1/2025 only the Respondent complied .

13. The Respondent submits that costs follow the event and draw reference from Section 27 of the Civil Procedure Act , and case law further the Respondent submits that the Appellants withdraw the Notice of Preliminary Objection approximately 4 months after the Tribunal had directed that the Preliminary Objection and the Appeal be disposed of by way of written submissions that the appellants all engaging in sharp practice to stall judicial proceedings

14. We have considered the Respondent submissions and confirm from the record that indeed the Appellants have filed several Applications and the Preliminary objection which took time to be prosecuted and which was finally withdrawn.

15. Section27 of the Civil Procedure Act provides that costs shall follow the event that is to say costs will be granted to the successful party unless otherwise ordained by the court for good reason

16. In the present case the Notice of Preliminary Objection was filed by the Appellants after directions had been issued for filing of submissions of the Appeal only for the Appellants to withdraw the same months later

17. It is our finding that indeed judicial time was wasted and delay was caused.

18. In the circumstances, we find that there is good cause to award the RespondentCosts of the Preliminary Objection

19. We therefore award costs of the Preliminary Objection dated 31/7/2024 to the Respondent in the sum of Kshs. 10,000/-.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF APRIL, 2025. HON. B. KIMEMIA - CHAIRPERSON SIGNED 29. 4.2025HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 29. 4.2025HON. BEATRICE SAWE - MEMBER SIGNED 29. 4.2025HON. FRIDAH LOTUIYA - MEMBER SIGNED 29. 4.2025HON. PHILIP GICHUKI - MEMBER SIGNED 29. 4.2025HON. MICHAEL CHESIKAW - MEMBER SIGNED 29. 4.2025Tribunal Clerk JemimahNo appearance by parties.Mention on 7. 7.2025.