[2024] KECPT 1171 (KLR)

King'oo v Boots Sacco (Tribunal Case 284 of 2018) [2024] KECPT 1171 (KLR) (25 July 2024) (Ruling)

Neutral citation: [2024] KECPT 1171 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 284 of 2018

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

July 25, 2024

Between

Petercott King'oo

Claimant

and

Boots Sacco

Respondent

Ruling

Notice Of Motion Application 1. The Notice of Motion Application dated 6th September, 2017 was filed under Article 10(2) (c ), Order 21 Rule 12, Order 42 rule 6(1) of the Civil Procedure Rules, Rule 3 and 11 of the Cooperative and 2 of the Civil Procedure Rules and sections 63 ( e), 1B,3A and 5 of the Civil Procedure Act seeking among others that:a.Spentb.That execution be stayed pending hearing and determination of the Application.c.That the Certificate of Costs obtained by the Claimant being fatally defective be set aside.d.That the Claimant proceed to draw a proper certificate of costs without including bus fare and lunch items.e.That the Claimant be punished by the tribunal under section 79 (4) of the Cooperative Tribunal Act for obtaining costs fraudulently.f.That the Applicants be allowed to liquidate the decretal amount in 6 equal instalments after every 2 months.

2. The Notice of Motion Application was based on the grounds that:a.The Claimant’s advocate engaged directly with the Applicant’s chairman, seeking Kshs. 27,600/= as costs for the Claimant allegedly incurred as bus fares and lunches while the case was pending.b.The law has no provision for lunch and bus fare.c.Even if lunches and bus fares are provided, which is denied, the claimant managed to sneak in costs for his lunch and bus fare into the Certificate of Costs without taxation being done.d.The Applicants are reeling from mismanagement of farmers officials(of whom the claimant was part and parcel of) and cannot pay the decretal sum in lumpsum payment.

3. This Tribunal on 14th September, 2023 gave directions for the application to be served on the Respondent, and on 16th February,2024 gave further orders for the parties to file Replying Affidavits to canvass the Application.

4. The Claimant in his Replying Affidavit stated that the Notice of Motion Application was brought to the Tribunal in absolute bad faith and meant and to slander him and the allegations in it are baseless and without a shed of evidence. That it’s the Chairman of the Respondent that made the first effort to try and reach a settlement out of court and any correspondence or communication during that period was in that spirit and has no bearing on the Application before court, and as such, any insinuation of impropriety on his part or on the staff of the Tribunal is in bad faith and totally out of context.

5. The Respondents through their Chairman Innocent Murunga filed a Replying Affidavit which stated that it was the Claimant’s advocate who approached them to pay lunch and bus fare for the Claimant and that the money demanded for lunch and bus fare is equal to the amounts calling itself “attendances and other expenses” in the decree. That an impression of collusion between this Tribunal and some parties is so glaring as bus fare and lunch had been squeezed into costs without taxation and in the absence of one party.

6. We have considered the Application, the responses, the Replying Affidavits filed and the evidence presented in support and in opposition, of the Application and as much as we understand the fact that the Respondent is unhappy with the amounts reflected in the decree, there is nothing irregular about them, neither do they reflect “ the lunch and bus fare “ alleged. We have perused the court records before us and are not persuaded by the position taken by the Respondent, and as such, see no reason to cancel or amend any part of the decree issued by the Tribunal on 11th July, 2023.

Final Ordersi.The Notice of Motion Application dated 6th September, 2023 and filed on 14th September, 2023 is dismissed with costs.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS25TH 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 JEMIMAHMbuthia for RespondentNo appearance for ClaimantMbuthia for Respondent – We pray for leave to appeal.30 days leave to appeal.HON. B. KIMEMIA CHAIRPERSON SIGNED 25. 7.2024