[2025] KECPT 216 (KLR)

Karita v Malindi Airport Taxi Sacco Limited (Tribunal Case 166/E189 of 2022) [2025] KECPT 216 (KLR) (27 March 2025) (Ruling)

Neutral citation: [2025] KECPT 216 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 166/E189 of 2022

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

March 27, 2025

Between

Njuguna Karita

Claimant

and

Malindi Airport Taxi Sacco Limited

Respondent

Ruling

1. This tribunal delivered judgement on 23/05/2024 and issued a decree on 03/09/2024 which spiked the respondent to fire a notice of motion application dated 20/09/2024 under a certificate of urgently seeking for the following orders;a.Spentb.That pending the interparties hearing and determination of this application an order be and is hereby issued staying the execution of the judgment delivered on 23. 5.2024 , the decree issued on 3. 9.2024 and any or other consequential orders as against the Respondent.c.That the honorable court be pleased to set aside ex-debito justitiae judgment delivered on 23. 5.2024 , the decree issued on 3. 9.2024 and any or other consequential orders and the hearing of the matter commences de novo.d.That the annexed draft statement of defence be deemed as duly filed and served upon payment of requisite fees.e.Costs of the application.

2. The Respondent raised four (4) grounds in support of the Notice of Motion;a.That they were not served with pleadings and the sermonsb.That they were condemned unheard against the Rules of Natural Justice of fair hearingc.That they have a good defence which raises triable issuesd.That the notice of motion application is brought without delay upon discovery of the existence of the claim

3. We have read and analysed the grounds stated in the notice of motion together with the supporting affidavit of Mr. Francis Muasya Makembo dated 20/09/2024. We contend that the application is tantamount to reopening of the case yet tribunal is functus officio.

4. It behoves the tribunal to note that Mr. Francis Muasya Makembo who is the Chairman of the Sacco could pen down a statement to the effect that they were not served with the pleadings or the sermons yet in an affidavit of service dated 08/09/2022 the court process server Mr. Kahindi Heri Mathias stated that he met him on 08/09/2022 at Malindi Airport Taxi Sacco LTDThe process server further explains that the chairman directed him to serve the documents upon Katsoleh & Co. Advocates and he (the chairman) accompanied him there.

5. On 16/02/2023, the Tribunal entered an interlocutory judgement in favour of the claimant against the respondent of which the respondents did not care to file an application to set aside or file a defence

6. We have read the respondents documents statements and argument as provided in the statement of defence, the Supporting Affidavit of the chairman and the attached documents. We have framed one (1) issue for determinationa.Whether the Tribunal is Functus Officio in relation to the notice of motion application

Analysis Whether this Tribunal is Functus Officio 7. It is trite law that upon delivery of its decision in form of a judgement, the tribunal is estopped from reopening a case which would require evidence of the parties by way of testimonies.On this, the tribunal places reliance on the decision of court of appeal in the case of Telkom KenyaLtdv John Ochanda (suing on his own and on behalf of 996 former employees of Telcom KenyaLtd (2014) eKLR in which the court held“Functus Officio is an enduring principle of Law that prevents the reopening of a matter before a court that rendered the final decision thereon”.

8. It is obvious and apparent that the respondents application is an after thought after being served with a decree, previously, when they were served with a sermons, the claimant Statement of Claim and all the annexures as per the return of Affidavit of Service, the respondent ignored or neglected to file a defence which occasioned the tribunal to enter an interlocutory judgement in compliance with order 7 Rules of the civil procedure Rules which provide;“Where a defendant has been served with summons to appear, he/they shall unless some other or further order be made by the court, file his defence within 14 days after he has entered an appearance in the suit and serve it on the plaintiff within fourteen days from the date of filling the defence and file am affidavit of service”.

9. One of the principles of equity is that;‘Whoever comes to equity must come with clean hands”. The Respondents notice of motion applications falls short of this principle because despite having the form of M/S katsoleh & Cc. Advocates to represent them in 2019 the same Law firm was served with the claimant documents o 08/09/2022 under chairman’s instructions.It is unbelievable that in 2024, the respondent could advise their new advocate M/S Makworo advocates LLP that they were not served.

10. This Tribunal refuses to be dragged into hide and seek games of the respondent.Justice is a serious guest and each party needs to play their role in ensuring that the said justice is served in a speedy and timely manner.

11. We have read the draft defence of the respondent and do not see or perceive any triable issues.Therefore, to tamper with a judgement of this tribunal in order to entertain a draft of defence which has no head or tail would be tantamount to wasting judicial time.

12. Accordingly, the respondent notice of motion application dated 20/09/2024 is hereby dismissed with no order as to costs.File ordered as closed

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF MARCH, 2025. HON. B. KIMEMIA - CHAIRPERSON SIGNED 27. 03. 2025HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 27. 03. 2025HON. BEATRICE SAWE - MEMBER SIGNED 27. 03. 2025HON. FRIDAH LOTUIYA - MEMBER SIGNED 27. 03. 2025HON. PHILIP GICHUKI - MEMBER SIGNED 27. 03. 2025HON. MICHAEL CHESIKAW - MEMBER SIGNED 27. 03. 2025HON. PAUL AOL - MEMBER SIGNED 27. 03. 2025Tribunal Clerk MutaiMuoko advocate for Claimant/Respondent.Makwere advocate for the Respondent – no appearanceHON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 27. 03. 2025