[2024] KECPT 239 (KLR)

Kathuri v Daima Cooperative Society Limited (Tribunal Case 452A of 2017) [2024] KECPT 239 (KLR) (7 March 2024) (Ruling)

Neutral citation: [2024] KECPT 239 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 452A of 2017

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

March 7, 2024

Between

John Muriithi Kathuri

Claimant

and

Daima Cooperative Society Limited

Respondent

Ruling

1. Before this Tribunal for determination is a Notice of Preliminary Objection dated 17th March, 2023 filed by the Respondent resulting from a Notice of Motion dated 3. 11. 2022 filed by the Claimant.The objection is premised on the following grounds that:a.The firm of Warui Maina & company advocates is not properly on record as it has failed to comply with the provisions of Order 9 Rule 9 of Civil Procedure Rules 2010. b.The court is functus officio and has no jurisdiction to hear and determine the applicants application dated 3. 11. 2022. c.The Applicant’s Application herein is frivolous, vexatious, bad in law, fatally and incurably defective and an abuse of the process of the court.

2. Earlier, the Claimant/Applicant had filed a Notice of Motion dated 3. 11. 2022 which was anchored upon Order 42 Rule 4 and 6 order 51 Rule 1 of the Civil Procedure Rules together with other enabling provisions of the law.The Notice of Motion dated 3. 11. 2022 sought orders that:a.Spentb.This Honourable court grant a stay of execution of the Counter- Claim dated 10th day of March 2021 pending hearing and determination of this application.c.That this Honourable Tribunal to reinstate its judgment delivered on 17th day of November 2017d.The costs of this Application be in the cause.

3. The same Notice of Motion Application listed nine (9) grounds to support the request for the orders sought as follows:a.Judgment in this matter was pronounced on 17th November 2017. b.That the judgment was later stayed without his knowledge.c.That the Defence and the Counter- Claim was filed, heard and determined while the Applicant was not aware.d.That a new firm of advocates have been appointed by the Applicant to represent him in the matter.e.The Applicant is willing to abide by the terms given by the court.f.The Applicant is apprehensive that if the Application is not allowed he may suffer immensely .g.The Respondents stand to suffer no prejudice if the Application herein is allowed.h.The right to set aside the application should not be denied due to the mistakes of an advocate and I should be given a chance to defend myself.i.It is in the interest of justice that the application be allowed.

4. These grounds were repeated in the Supporting Affidavit Application sworn by the Claimant/Applicant on 3. 11. 2022.

Background 5. The genesis of this matter arose out of a Statement of Claim for Kshs 1,003,500/= dated 14. 3.2017 which was filed by the Claimant on 6. 7.2017 against the Respondent.At the time, the law firm of Kulecho & Company were in record for the Claimants while Kiauthia Arithi & Company advocates were in record for the Respondents.

6. As time progressed an Application for request for judgment dated 14. 9.2017 was filed by the Claimant/Applicant.

7. The Tribunal considered the above Application and entered an Interlocutory judgment on 19. 10. 2017 for Kshs 1,003,500/= in favour of the Claimant.It further ordered that prayer (b) on loss of earnings for the sale of his motor cycle and costs to go or Formal Proof.

8. An Affidavit of Service Application dated 17. 11. 2017 for the inter-locutory judgment was filed in the Tribunal on 9. 2.2018.

9. Vide a Letter dated 13. 2.2018 the advocates for the Respondents wrote to the Tribunal and requested for copies of the following documentsa.The interlocutory judgmentb.Notice of the entry of the interlocutory judgmentc.Affidavit of serviced.Stated costse.Affidavit of Service on no. 4 above.f.Decree and Certificate of stated costsg.Application for execution of Decreeh.Warrants of Attachment.

10. The Respondent thereafter filed a Statement of Defence and Counter- Claim dated 16. 2.2018 and sought for the following prayers.a.Counter- Claim of Kshs 117,041. 44/=b.Costs of the suitc.Interest on (a) & (b) at the Tribunal ratesTo support this Counter-claim a Supporting Affidavit and a Verifying Affidavit of the Chief Executive Officer Mr. Elijah Njeru Mugo plus a List of Documents were attached.

11. Equally, the Respondents filed a Notice of Motion dated 16. 2.2018 and sought orders for:a.Spentb.Stay and uplifting of execution of the Decree dated 19. 10. 2017 and all other Consequent Orders .c.Set aside the Interlocutory judgment dated 19. 10. 2017 and all Subsequent Orders.d.Unconditional leave to defend the suit.e.The Defence and Counter-claim be deemed properly filed.f.Cost to be provided.

12. Upon consideration of the facts of this matter and the protracted mentions dates the Tribunal delivered a Ruling on 10. 3.2021 with the following orders:a.That the Claimant’s claim is dismissed with costs for want of prosecution.b.That judgment was entered as prayed by the Respondent of the Counter- Claim for Kshs 128,430/= plus interest and costs.It is on the basis of this Ruling that the Applicant filed another Notice of Motion dated 3. 11. 2021 which is objected by the Respondent/Applicant.

Analysis 13. Having analyzed the facts as contained in the court file, we have come to the conclusion that two (2) issues need to be determined.i.Whether the firm of Warui Maina & Company advocates failed to comply with the provisions of Order 9 Rule 9 of the Civil Procedure Rule 2010. ii.Whether the Tribunal is functus officio to determine the Claimant’s/Respondent’s Application dated 3. 11. 2022.

On Whether the Firm of Warui Maina & Company Advocates Failed to Comply With the Provisions of Order 9 Rule 9? 14. Order 9 Rule 9 of the CivilProcedure Rules 2010 reads as follows:“when there is a change of advocates or when a party decides to act in person having previously engaged an advocate after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court.”A literal interpretation of this is that when a judgment has been pronounced by a Tribunal or court, an advocate who is appointed to defend the party must seek leave of the court or the Tribunal.

15. From the beginning our file records indicate that the firm of Kulecho and Company represented the Claimant/Respondent while the firm of Kiauthia Arithi & Company advocate represented the Respondent/Claimant.In the same file records , we have not seen a filed copy of a Change of Advocates filed by the Claimant/Applicant from 2017 upto 3. 11. 2022 when he filed a Notice of Motion for the Applicant.

16. When the firm of Warui Maina filed a Certificate of Urgency and the Notice of Motion dated 3. 11. 2022, he did not advice the Tribunal that he was coming on record for the Claimant/Respondent. at the same time, they did not seek leave to come on record in place of Kulecho and Company advocates who had gotten the interlocutory judgment in favour of the Claimant/Respondent.

17. This Tribunal have no doubt that the firm of Warui Maina and Company advocates are aware of the provisions of Order 9 Rule 9 which state that :“When there is a change of advocate or where a party decides to act in person having previously engaged an advocate after judgment has been passed such change on intention to act in person shall not be effected without an order of the court”.On this, the firm of Warui Maina and Company advocates choose not to comply with this procedure.

18. Order 9 Rule 9 (b) provides for another avenue in which an advocate may come on record. This avenue is to enter into a consent arrangement with an outgoing advocate and file it in court.Order 9 Rule 9 (b) provides:“(b)upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be”Again the firm of Warui Maina and Company advocates failed to file a consent arrangements with the previous advocate.

19. Having failed to comply with the provisions of Order 9 Rule 9 (a) & (b), we find that the firm of Warui Maina & Company advocates did not follow the laid down procedures to come on record for the Applicant/Respondent.

20. On the part of the Claimant/Respondent stating at paragraph 6 of his Supporting Affidavit dated 3. 11. 2022 that :“my previous advocate despite being serviced with the document, he did not bother to inform me of the existence of the counter- claim nor the interlocutory judgment.”We find that, this is one of those blame games that parties tend to employ when they fall out with their advocates. This form of tactics was enunciated by the court in the case of Habo Agencies Limited v Wilfred Odhiambo Musingo [2015] eKLR where it was held that:“it is not enough for a party to simply blame the advocate on record for all manner of transgressions in the conduct of litigation.”Additionally in the case of Ruga Distributors Limited v Nairobi Bottlers Limited HCCC 534 of 2011, the court stated that:“it is not enough for a party to blame their advocates but to show the tangible steps taken by him in following up his matter.”

21. By any standards, the denial of the Claimant/Respondent that he had no knowledge of what his advocate was doing about this case since 2017 is unbelievable hence we dismiss it.

Whether the Tribunal is Officio Functus? 22. The doctrine of officio functus is a legal principle that ties the hands of the Tribunal/court not to reopen matters that have been canvassed and determined through the delivery of a judgmentThe Black Law Dictionary 9th edition defines officio functus as follows:“having performed his/her office (of an officer or official body) without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.”

23. Prayer ( c) of the Notice of Motion dated 3. 11. 2022 filed by the Claimant/Respondent about the reinstatement of a judgment delivered on 19. 10. 2017 falls within the ambit of the functus officio doctrine which ties the tribunal from re-visiting the matter because it has rendered its judgment.We have placed our reliance on the Court of Appeal decision in the case of Telkom (K) Limited v John Ochanda (2014) eKLR where the court held that:“functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon. “In view of the above, the Tribunal is bereft of jurisdiction to re-instate its judgment.

24. In conclusion, it is our considered view that the notice of motion dated 3. 11. 2022 lacks merit and we hold that its appurtenant prayers must fail and we so order:That the Respondent’s/Claimant Notice of Preliminary Objection dated 17. 3.2023 is merited on prayer 1 and 2. We therefore order as follows:a.The Claimant’s Notice of Motion dated 3. 11. 2022 lack merit and is hereby dismissed with costs.b.The Respondent’s Preliminary Objection dated 17. 3.2023 is upheld with costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF MARCH, 2024. .....................HON. BEATRICE KIMEMIACHAIRPERSON.....................HON. BEATRICE SAWEMEMBER.....................HON. FRIDAH LOTUIYAMEMBER.....................HON. PHILIP GICHUKIMEMBER.....................HON. MICHAEL CHESIKAWMEMBER.....................HON. PAUL AOLMEMBERTribunal Clerk JemimahMiss Ngotho holding brief for Maina for Applicant.No appearance for Respondent.Hon. Beatrice Kimemia Chairperson Signed 7. 3.2024