[2024] KECPT 1533 (KLR)

Kenya Medical Association Savings Sacco Limited v Mokeira (Tribunal Case 129'A' of 2021) [2024] KECPT 1533 (KLR) (26 September 2024) (Ruling)

Neutral citation: [2024] KECPT 1533 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 129'A' of 2021

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

September 26, 2024

Between

Kenya Medical Association Savings Sacco Limited

Claimant

and

NYamate Jeldah Mokeira

Respondent

Ruling

1. This ruling dispenses with the notice of Preliminary Objection dated 15th January 2024. In the notice of Preliminary Objection, the Applicant prays that the Notice of Motion Application dated 19th December, 2023 be struck out on the following grounds:a.That this application be certified as urgent and service be dispensed with in the first instance.b.That pending the hearing and determination of this application, this court be pleased to issue an order staying execution out of time of this Honourable court’s judgment dated the 29th day of November, 2023 by the Honourable Mwatsama preventing the Claimant/Respondent from in order to recover any amounts due to them as per the judgment, that is, Kshs. 3,194,707/= with interest plus costs.c.That upon granting prayer (b) above this Honourable court be pleased to set aside this court’s judgment dated 29th day of November, 2023. d.That upon granting prayer (c ) above, this Honourable court be pleased to set aside the proceedings of the 21st day of November 2023 in which the Claimant’s case proceeded ex-parte.e.That upon granting prayer (a,b and c) above, this Honorable court be pleased to order the claimant’s case to be re-opened and heard on priority basis on merit.f.That costs of this application be in the cause.

2. The objection is premised on the grounds on its face which are inter alia that: The Notice of Motion has on its face of it not attained the mandatory requirement of Order 9 Rule 9 (a-b) and Rule 10 of the Civil Procedure Rules, 2010 having been filed without the leave of the Tribunal.

3. The brief background of this matter is that this Tribunal entered judgment against the Respondent for the sum of Kshs. 3,194,707/- . The Respondent has filed an application to stay the execution of the judgement and also to set aside the judgement and reopen the matter to be heard on merit.

4. The matter was canvased by way of written submissions.

5. In their submissions, the Claimant relying on Order 9 Rule 9 (a-b) submitted that Ms. Omwoyo from Sonye Ondari Advocates attended court on 20th March and indicated that she had been instructed to come on record for the Respondent. According to them, the claim that Clair Wanjiku Chege advocate logged into the court session is misleading.

6. According to the Respondents, Preliminary Objections are raised only on the points of law and not on any facts to be ascertained or where the court is called to exercise judicial discretion.

Analysis 7. The question before this Tribunal is whether the Preliminary Objection is merited.

8. We find that ground one of the Preliminary Objection has been dispensed with by virtue of the consent entered into by the advocates currently on record. The consent dated 29th January 2024 by Sonye Ondari & Co. Advocates and Clare Wanjiku Chege Advocate.

9. Grounds 3 and 4 have facts that need to be further ascertained and interrogated and therefore cannot be said to be grounds for a Preliminary Objection. The parties will be required to tender evidence for this court to consider the same.

10. We are left with ground 2 on the question of whether this court became functus officio when judgement was entered on 21st November 2023. The prayers that the Applicant seeks in the Notice of Motion dated 19th December 2023 are stay of execution, set aside judgement, set aside proceedings and re-opening of the case to be heard on merit. The question is whether it is against the law for this Tribunal to grant the above prayers after it has entered its judgement. The Claimant did not adduce any evidence or points of law that support his objection.

11. Rule 17 of the Cooperative Tribunal Rules gives the Tribunal powers to set aside Judgement, Order or an Award made ex parte. This Tribunal is therefore not Functus Officio to deal with the Notice of Motion Dated 19th December 2023. Its therefore without merit.

12. In the upshot of the foregoing, we find no merit in the Preliminary Objection dated 15. 1.2024 and it is hereby dismissed.File closed.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF SEPTEMBER, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 26. 9.2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 9.2024HON. BEATRICE SAWE MEMBER SIGNED 26. 9.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 26. 9.2024HON. PHILIP GICHUKI MEMBER SIGNED 26. 9.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 26. 9.2024HON. PAUL AOL MEMBER SIGNED 26. 9.2024Tribunal Clerk MutaiMokaya advocate for the Respondent/ ApplicantShikola advocate for the ClaimantMokaya advocate – We have an Application dated 19. 12. 2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 9.2024