[2024] KECPT 1160 (KLR)

Kerelon v Stima Sacco Society Limited (Tribunal Case 222 of 2019) [2024] KECPT 1160 (KLR) (25 July 2024) (Ruling)

Neutral citation: [2024] KECPT 1160 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 222 of 2019

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

July 25, 2024

Between

Esther C Kerelon

Claimant

and

Stima Sacco Society Limited

Respondent

Ruling

1. The Notice of Motion Application dated 31st October, 2022 is brought under Order 8 Rule 3(1) and (5) of the Civil Procedure Rules, Rules 3,4 and 6 of the Co-operative Tribunal (Practice and Procedure) Rules, 2009 seeking orders among others:i.That the Claimant be granted leave to amend her statement of Claim dated 17th April, 2019 in terms of the Draft Amended Statement of Claim annexed and marked as “Exhibit 1”.ii.That the cost of the Application be provided for.

2. The Notice of Motion Application is supported by the annexed Affidavit of Esther C. Kerelon on the grounds that:1. At the time of filing the Claim, the Claimant was still employed by KPLC and a member of the Respondent Sacco.2. The Claimant has since retired from employment and proceeded to cease her membership with the Respondent Sacco after conceding to have the Respondent Sacco deduct all the amount it claimed against her which deductions were and remain the subject of this suit.3. It now follows that the prayers as made in the original statement of this claim cannot be sustained as the impugned deductions have already been made.4. In the interest of justice, the Claimant seeks leave to amend her statement of Claim in respect of deductions already made.5. The Respondent shall not suffer any prejudice should the Statement of Claim be amended as is shown in the draft.

3. On 14th June, 2023, this Tribunal gave directions on how to canvass the Application with further directions given on 15th September, 2023 and 6th February, 2024 on Submissions. As at the time of writing this ruling, the Respondent had not complied with the directions of this Tribunal to file their response to the Application or to file their Written Submissions to help this Tribunal determine the Application.

Can the Tribunal Consider the Prayers in the Application.Order 8 Rule 3 of the Civil Procedure Rules provides for amendment of pleadings with leave of court. It states:“(1)subject to Order 1, Rule 9 and 10, Order 24, Rules 3,4,5 and 6and the following provisions of this rule, the Court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings.”Further, Order 8, Rule 5 gives the general power to amend. It states that:“5(1)for the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the court may either of its own motion or on the Application of any party order any document to be amended in such manner as it directs and, on such terms, as to costs or otherwise as are just.”From Order 8 Rule 3 and 5, it is clear that the purpose of allowing amendment of leadings is to enable courts to entertain and determine real issues that are in controversy between parties. This Tribunal therefore has been invited to look at the intent and purpose of the proposed amendments and whether by allowing the same will help in determining the real controversy between the Claimant and the Respondent, and if by disallowing or allowing this Tribunal will prejudice either party in the controversy.

4. In Institute for Social Accountability & Another v Parliament of Kenya & Another v Parliament of Kenya & 3 others [2014] eKLR, it was the courts position that:“the object if amendment of pleadings is to enable the parties to alter their pleadings so as to ensure that the litigation between them is conducted, not on the false hypothesis of the facts already pleaded or the relief or remedy already claimed, but rather on the basis of the true state of the facts which the parties really and finally intend to rely on. The power of amendment makes the function of the court more effective in determining the substantive merits of the case rather than holding it captive to form of the action or proceedings.”

5. This Tribunal has considered the legal parameters informing the decision for allowing or not allowing amendments of pleadings and it is our considered view that the proposed amendments have not introduced any new or consistent cause of action that is prejudicial or that has affected the legal rights of the Respondent and as such occasioned injustice.But in the event at they do, in the spirit of fairness, this Tribunal has also given the Respondent leave to file an Amended Defence.

Final Orders.i.The Notice of Motion Application dated 31st October, 2022 succeeds in the following terms.a.Claimant is granted leave to amend their statement of claim dated 17. 4.2019 and to file and serve the same within 14 days herein.b.Respondent granted corresponding leave to file and serve amended response to the claim within 14 days of service.c.Parties to file their trial bundles within 28 days herein.d.Costs in the cause.e.Pre- trial directions on 8. 10. 2024. Notice to issue.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 25TH DAY OF JULY, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 25. 7.2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 25. 7.2024HON. BEATRICE SAWE MEMBER SIGNED 25. 7.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 25. 7.2024HON. PHILIP GICHUKI MEMBER SIGNED 25. 7.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 25. 7.2024HON. PAUL AOL MEMBER SIGNED 25. 7.2024Tribunal Clerk JemimahNo appearance by partiesRuling delivered in absence of the parties.HON. B. KIMEMIA CHAIRPERSON SIGNED 25. 7.2024